Citation Nr: 1408932
Decision Date: 03/04/14 Archive Date: 03/12/14
DOCKET NO. 11-05 776 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUE
Entitlement to service connection for left lower extremity disability, to include as secondary to service-connected low back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
David S. Nelson, Counsel
INTRODUCTION
The Veteran had active service from August 1969 to July 1971.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine on behalf of the RO in Detroit, Michigan. Jurisdiction of this case now belongs to the Detroit RO.
The Veteran later appeared before the undersigned in January 2012 and delivered sworn testimony via video conference hearing in Detroit, Michigan.
FINDING OF FACT
VA physicians have linked the Veteran's left lower extremity symptoms to his service-connected low back disability.
CONCLUSION OF LAW
The Veteran's left lower extremity radiculopathy is proximately due to service-connected low back disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
In light of the favorable Board decision below to grant the claim for service connection for left lower extremity disability, any deficiency as to compliance with the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is rendered moot.
Applicable Laws-Service connection
Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen.
VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002).
The Veteran has been granted service connection for low back disability, currently characterized as chronic lumbar strain with left sacroiliac dysfunction, effective June 1980. The Veteran's low back diagnoses include lumbar spine arthritis and degenerative disk disease.
Service treatment records reveal that in May 1970 the Veteran complained of left hip pain and pain in the lumbosacral area following a motor vehicle accident. The Veteran complained of left hip pain on his August 1971 service separation examination.
A private July 1980 private hospital discharge summary revealed that the Veteran had a 10 year history of low back pain radiating down the left leg. Straight leg raising was positive on the left.
At a July 1982 VA neurological examination the Veteran complained of low back pain, involving the hip, that would radiate down his left leg.
A February 1999 VA electromyography (EMG) test interpretation indicated that there was "electrodiagnostic evidence suggestive of but not diagnostic of a left S1 radiculopathy."
In a March 1999 VA Neurosurgery Clinic Note the examiner stated that review of the Veteran's February 1999 VA EMG study "reveals mild abnormalities on the F response in the leg lower extremity as well as mild fibrillations in the gastrocnemius on the left side." The VA neurosurgeon noted that the Veteran's radiculopathy was not contributing significantly to his overall pain as most of the pain was coming from his low back.
An October 2000 VA EMG noted a normal needle examination of the left lower extremity and normal sensory and motor nerve conduction studies. The interpretation was a normal examination.
A January 2001 VA medical record noted that the Veteran had complained of a constant pain in his left hip since 1970.
An April 2007 VA progress note indicated that the Veteran had intermittent lower left extremity numbness. The VA physician stated as follows:
EMG negative however, I have reviewed the veteran's treatment records and it is more likely than not that his left leg numbness is caused by his service connected lower back condition.
At a June 2007 VA spine examination the Veteran had a positive straight leg test on the left with pain radiating down the leg to the posterior thigh. EMG testing revealed a normal examination.
At a November 2007 VA bones examination the Veteran reported that in March 2007 his left lower extremity "just gave out" without warning, causing him to fall down some stairs. He reported that he had pain that would radiate form his left buttock to his left thigh. Following a physical examination the examiner commented as follows:
The veteran's left leg symptoms are typical of those seen in a lumbar radiculopathy. The veteran's previous negative EMG study does not assess the smaller myelinated and unmyelinated nerve fibers, which are typically responsible for pain transmission; this would explain the veteran's radicular symptoms even with a negative EMG.
The veteran's MRI shows degenerative disk disease, with disk bulging and neural foraminal compromise. This is a classic radiologic finding in persons with symptoms of lumbar radiculopathy. The veteran's symptoms of radiating pain down his left leg, loss of reflexes, loss of sensation and positive straight leg raising test and weakness in his great toe are classic findings in the lumbar radiculopathy, although this is not confirmed by EMG as described above. The veteran does not have a left leg condition as a separate diagnosis.
Therefore, the veteran's left leg condition is at least as likely as not secondary to his service connected disability of back condition.
A private December 2008 EMG report noted an impression of an abnormal study, and indicated that there was electrodiagnostic evidence of non-localized peroneal neuropathy affecting the left lower extremity. The physician stated that there was no definitive evidence to support the diagnosis of lumbar radiculopathy except for some evidence of nerve root irritation in the mid lumbar area.
At his January 2012 Board hearing the Veteran indicated that he had experienced back pain and radiating pain since service. He further indicated that he always had back pain when he had radiating pain. He also stated that he had left lower extremity tingling and numbness.
An October 2013 private MRI revealed clinical data indicating left lower extremity radiculopathy. The impression included L5-S1 broad-based bulging of the disc.
A review of the record reveals that the Veteran has made complaints of either left hip pain or left lower extremity since service. Further, VA physicians in April 2007 and November 2007 have essentially linked the Veteran's left lower extremity radiculopathy to his service-connected low back disability. While EMG testing has at times revealed apparent normal studies, such as in February 1999, the Board notes that in a March 1999 report, a VA neurosurgeon stated that the February 1999 EMG study did in fact reveal some abnormal findings and he went on to describe the condition as the Veteran's "radiculopathy." Significantly, the November 2007 VA examiner also offered a rationale as to why the Veteran's EMG study had produced a negative result, and why that negative result was not controlling in this case.
The Board finds that the competent medical evidence is at least in equipoise as to whether the Veteran has left lower extremity radiculopathy related to his low back disability. Based on the foregoing, and with resolution of doubt in the Veteran's favor, the Board finds that the evidence of record supports a grant of service connection for left lower extremity radiculopathy.
ORDER
Service connection for left lower extremity radiculopathy, as secondary to service-connected low back disability, is granted.
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Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs